Select Committee on European Union Written Evidence


Memorandum by Sir William Nicoll

THE ESTABLISHMENT OF A SECOND CHAMBER IN THE INSTITUTIONAL STRUCTURE OF THE EUROPEAN UNION

  1.  Proposals for a Second Chamber of the European Union, composed of Members of National Parliaments, have emanated from several quarters. The specifics of the different schemes reflect the differing "finalities" which their authors have in mind for the Union. In one version the Second Chamber is an organ of a European Federation, in which it represents the constituent States vis-a"-vis a European Federal Government (the principle of the Bundesstaat). In others the Union remains an order of States (Staatenbund) and the principal task of the Second Chamber is to protect states' rights against encroachment by the other central institutions, especially the Commission, the directly elected European Parliament and the European Court of Justice.

  2.  The States' Chamber of a Federation is a distant vision. The alternative concept of the Second Chamber is that it should act as one of the checks on what is conceived to be the trend for power to pass from national governmental systems towards Union institutions, or, more accurately, towards the institutions of the European Community. This advocacy is usually linked to the principle of subsidiarity.

  3.  The following section reviews the leading proposals for a Second Chamber of the "checks and balances kind".

EUROPEAN CONSTITUTIONAL GROUP

  4.  The most fully worked out scheme was put forward by the European Constitutional Group in 1993. The ECG, which was multi-national was associated with the London-based European Policy Forum, a think-tank which took a critical view of the Community and Union. The Group's report was prepared in the perspective of the 1996 IGC.

  5.  The ECG's proposals cover the whole field of Union governance and include the adoption of a written constitution. The proposals include the establishment of a two chamber legislative process, with a new Chamber of National Parliamentarians. This would better preserve the balance between collective action by the Union and individual measures by the Member States. It would be part of the constitutional defences against the growth of central bodies.

    "The Chamber of Parliamentarians of national parliaments would have a special role at the pre-legislative stage in determining whether action was needed by the Union and in ensuring that the proposed measures were in conformity with the constitution".

  It would have 175 members, for 12 Member States.

  6.  The new chamber would have powers to reject legislative proposals by a majority vote; to initiate legislation; to review budget proposals and reject them, including line items; to approve international agreements; and to approve the accession of new Member states.

  7.  The Group suggest that the voting rights (? the degree of members' independence) could be exercised by the national parliament if it decides so in plenary session. Members should serve for not more than five years. Membership would cease if the individual his or her national seat or was otherwise recalled.

FRANK VIBERT

  8.  In 1995 the ECG's rapporteur, Frank Vibert, brought out "Europe, a Constitution for the Millennium"i. In it he discusses how constitutional oversight can be ensured. He suggests (p177) two options. In one, national parliaments would have the power to block proposed Union measures. In the other a second Union chamber, composed of "representatives" of national parliaments would act as rule keeping "senate". Since on Mr Vibert's analysis, the directly-elected Assembly of the Union has an in-built interest in measures being undertaken collectively in Europe," in the final analysis the parliaments of the Member States will be able to exercise an effective collective voice only if Europe's constitution provides them with a formal role in Union procedures" (p216). On the question of the degree of independence of Second Chamber Members, the author envisages that some might come with instructions from their parliaments. Others might be given greater flexibility by their parliament or parliamentary party (p218).

  9.  None of the foregoing proposals for a Second Chamber as a constitutional watchdog found an echo in the IGCs of 1996-97 or 2000.

LARRY SIEDENTOP

  10.  Larry Siedentop's book, Democracy in Europeii is a contribution to "the great constitutional debate". He draws his inspiration from the American experience. His chosen title is an evocation of de Tocqueville's Democracy in America. He does not regard a federation as inevitable or even desirable: the development may be to an association of sovereign states. But, taking account of the distinctive political cultures and forms of civic spirit in the countries of Europe he points to the attractions of federalism, in which these conditions could survive. The pre-condition is a European consensus, at present lacking. "The establishment of a European Senate, charged with overseeing that question and the work of a European court, creating a common jurisprudence, could gradually help to create such a consensus." (p231). The leading thought is that in a federal system "the obstacles to central government acting in certain spheres may be almost permanent . . . Federalism greatly strengthens an awareness of the possibilities of legitimate conflict within a political system." (p98). Siedentop is a convinced supporter of the separation of powers. His book does not explain why the European Parliament is not a sufficient counteracting force.

TONY BLAIR

  11.  Speaking in Warsaw in October 2000iii the Prime Minister joined in the discussion initiated by his European colleagues about reform beyond the Treaty of Nice, which was at the time approaching its conclusion. Mr Blair spoke of the need for a "charter of competences" or "statement of principles" to demarcate what should be done at European level and what at national level. (It could also give insight into what should be done at regional level).

  12.  Mr Blair continued:

    "I also believe that the time has now come to involve representatives of national parliaments more on such matters, by creating a second chamber of the European Parliament.

    A second chamber's most important function would be to review the EU's work in the light of this agreed Statement of Principles. It would not get involved in the day-to-day negotiation of legislation—that is properly the role of the existing European Parliament. Rather, its task would be to help implement the agreed statement of principles; so that we do what we need to at European level but also so that we devolve power downwards. Whereas a formal Constitution would logically require judicial review by a European constitutional court, this would be a political review by a body of democratically elected politicians. It would be dynamic rather than static, allowing for change in the application of these principles without elaborate legal revisions every time.

    Such a second chamber could also, I believe, help provide democratic oversight at European level of the common foreign and security policy" (p21).

  13.  The Prime Minister is thereby opposing the proposal, already current, that the EU should possess a written constitution, which would in his view restrict progressive and necessary change. In place of relying upon jurisprudence to determine what is proper to the Union and what to the Member States, he prefers the political decision of serving parliamentarians. By virtue of the decisions, the agreed principles could change. Although the second chamber would not be responsible for co-decision on legislation it is inherent in the job description that it would be able to block, or propose amendments to, legislative proposals which its Members considered to be inconsistent with the charter of competences. The context and the Federal Trust interpretation is that the second chamber would be the protector of states' rights (p5).

  14.  The Prime Minister's reference to the CFSP is a reminder that the European Parliament has minimal involvement in that Pillar of the Union. In this function, the second chamber would not be taking position on matters of states' rights but on issues of foreign policy, probably in an advisory capacity.

LORD BRITTAN

  15.  Since Lord Brittan can explain his proposals unaided they are only briefly summarised here. In A Diet of Brusselsiv and elsewhere he suggests the setting up of a Committee of National Parliaments to scrutinise the work of the Council and the Commission. In this way, subsidiarity would be enforced, the legal basis of measures could be challenged, laws taking the EU into new territory would be scrutinised and laws whereby governments cede competence to European institutions would be examined.v The gains would be:

    —  national parliamentarians would be more fully educated about the Union;

    —  democratic legitimacy would be increased;

    —  voters would be reassured that power over their lives is not ebbing abroad.

A half-way house: joint meetings

  16.  In recognition of the reality of the problem of the relationship between national parliaments and the EP, there have been suggestions for bringing them together in some form of joint debating forum. The general idea goes back as far as January 1963, in the days of the non-elected European Assembly. In that year there was a meeting between the President of the Assembly and his counterparts in the national parliamentsvi. It was a dead end. In 1979, Laurent Fabius, then President of the Assemblee nationale and an MEP, organised the first meetings between elected MEPs and representatives of the bodies in national parliaments which specialise in European affairs (from which the French acronym COASC).vii The title in English is Conference of European Affairs Committees (CEAC).

  17.  In 1990 at the suggestion of President Mitterrand and Prime Minister Gonzales, representatives of the EP and national parliaments met in Rome. In their Final Declaration the participants insisted on tighter democratic control of the activities of the Community. They called for reinforced co-operation among themselves, including the holding of joint conferences, notably at the time of IGCs.

  18.  In the framework of the Maastricht IGC, France went further. It proposed a Congress of MEPs and members of national parliaments or regional assemblies meeting three times a year jointly with the President of the Council and the President of the Commission. This "Conference of Parliaments" should be consulted on matters pertaining to the CFSP and to the CJHA; and on the political conditions for the application of the principle of subsidiarity. This proposal did not go down well with the EP or with the majority of Member States. Heavily qualified it became Declaration 14 annexed to the Maastricht Treaty, which invites the EP and national parliaments to meet as necessary to be consulted on the main features of the EU, without prejudice to the powers of the EP and the rights of national parliaments. The Declaration has no binding force.viii

  19.  The IGC which gave rise to the Treaty of Amsterdam was prepared by a Reflection Group of representatives of the Member States. In a single sentence the Group rejected—which must have been unanimously—the creation of a second chamber composed of national parliamentarians (Final Report, para 95). By a majority it also disfavoured the convocation of the Conferences of Parliaments as provided for in Masstricht Declaration 14. But it approved of COSAC, while having doubts about institutionalising it further (para 93). In a separate discussion it suggested that COSAC would facilitate the exchange of parliamentary information on the CJHA (para 53).

  20  The upshot was the final Protocol (which is legally binding) in the Amsterdam Treaty. It mandates COSAC to:

    —  make any contribution it deems appropriate in particular on draft legal texts:

    —  examine any legislative proposal or initiative in relation to the establishment of the area of freedom security and justice;

    —  address to the EP, Council and Commission any contribution it deems appropriate on legislative activity, notably in the field of subsidiarity and of questions regarding fundamental rights.

  As a participant, the Committee will have its own appreciation of the work of COSAC.

  21.  The Treaty of Nice contains no substantive reference to relations between the Union and national parliaments. But in Annex IV the Member States agreed to open a debate on the future of the Union. Among the four questions which are the preliminary agenda for the debate is: "the role of national parliaments in the European architecture." The Member States commented that they recognised:

    "the need to improve and monitor the democratic legitimacy and transparency of the Union and its institutions, to bring them closer to the citizens of the Member States."

  This is European Council shorthand for concern about the lack of appeal of the Union throughout its 15 members.

OPPOSITION

  22.  The different advocates of a second chamber point to better supervision of the work of the Union, to a richer information flow to national politicians and their electors, to the prospect of improved public confidence and through better definition of what the Union can do and what not, to stronger public support for what the Union does in its thus defined field. The watchwords are closeness, transparency, legitimacy. In some minds these qualities help to shape the consensus in favour of further integration. In others they reaffirm the authority of the Member States. Out and out federalists and doubters converge. In a Federation two chambers and co-decision between them are a virtual necessity since one alone, representing the unitary side of government, could act to transfer all power to the centre and overturn the Federal constitution.ix The opponents of federalism need something to arrest the creeping growth of central power.

  23.  This leaves out of the argument integrationists who fear that the development of the Union will be retarded if too much prominence is placed on states' rights and not enough to the build up of the Union. In this sense a series of commentators has opposed the creation, at least at this stage, of a second chamber. Juliet Lodge, a noted academic, in her review of Lord Brittan's suggestions, argues that

    "adding another layer to the existing supranational institutions would not enhance efficient or open government. It would increase complexity and make it even less intelligible and transparent . . . A Euro-Senate should be resisted" (Op cit, p10).

  She supports arrangements like what are called above the half-way house. She calls upon national parliaments to enhance their scrutiny and to support the EP in its continuous effort to share power.

  24.  David Coombsx agrees that the EP should make coalitions with national parliaments. To him it "makes no sense" to give national parliaments additional representation. He is convinced that a systematic comparison of the EP before and after direct elections would show that "not a lot" would be gained by having a nominated as well as an elected parliament.

  25.  The Federal Trustxi rejects reversion to an appointed parliamentary body. It considered that the Community's legislative process was already complicated enough, without the added complication of a third chamber [the Council being regarded as one]. Its members would be part-timers whose attention would be engaged elsewhere. Like Ms Lodge it believes that MPs would be better occupied holding ministers to account.

  26.  Andrew Duff (at the time Director of the Federal Trust, now an MEP) contendsxii that national parliaments cannot share with the European Parliament in the routine law-making of the EU. "That way lies certain immobility". He judges that little changed as a result of the attentions of COSAC.

The present author's own conclusions

  27.  When in 1978 the late Edmund Dell and his fellow "Sages" reviewed the then Community for Heads of State and Government, they described the ways of the Community as "heavy". Watchers of the institutional interaction would agree. Expanding membership does not make the processes any lighter. Within each of the branches of the legislature it takes much time and effort for the nub of agreement to form; and more time for the two nubs to come together. To add another institution to the exchanges could only prolong the deliberation and threaten to reduce the much despised common denominator of agreement yet further. This is the price which a second chamber would impose and which cannot be wished away.

Practical issues and Rules of Procedure

  28.  If the price is worth paying some practical problems would fall to be overcome. Consistently with the Union's unwillingness to intervene in domestic house-keeping the choice of the method of selecting Members of the Chamber of Parliaments would be reserved to national parliaments themselves, as also the question of whether they are delegates or Burkian independents. The Chamber would be responsible for drawing up its own rules of procedure and its own management. There would be some provision for dialogue with the EP and with the Commission and Council Presidency. With modern technology it is imaginable that the location of the Chamber could be in cyberspace, with members participating in debate via satellite communication.

Dual Mandate

  29.  The case for or against does not hinge on whether the dual mandate is workable. In the appointed assembly it was generally held to be an impediment. But the workload of the second chamber would not be overwhelming if it were confined to subsidiarity scrutiny of say, 50-60 legislative proposals a year, shared out among several committees, along with a periodic vote on a foreign policy motion. Ex hypothesi the Members of the Chamber would have a particular interest in European affairs, conceivably as members of relevant committees in their own houses. A second chamber endowed with revising functions would be a different matter.

Is the second chamber viable?

  30.  All measures which bring the Union closer to the citizens and strip it of its mysteriousness are to be welcomed. It is tempting to think that a chamber which projected an image of preventing power from slipping away would inspire public confidence. But power does shift, sovereignty is "pooled" and the image is distorted if it conveys the impression that the Union is largely a matter of holding back the other central institutions. It is not questioned that electors feel closer to their own politicians than to MEPs, but it is also beyond question that across the Union the voters display morosity towards their parliamentarians, their parties, their parliaments and the machinery of their government. It is too facile to conclude that Europe would look better if better known personalities were involved.

  31.  The spectacle would be unedifying if the business of the Union were marked by running conflict between the three legislating bodies: EP, Chamber and Council (and its masters in the European Council). It is unsafe to foresee that the tensions would always be creative. Conflict is inevitable: the Second Chamber, zealous of states' rights, could be a roadblock which the other bodies, as well as the Commission, would spend time and effort to circumvent. (The Council majority is not necessarily a reflection of the Chamber majority. If it were, the chamber would be redundant.)

  32.  Another conflict could be between political judgement and judicial verdict. If, as is proposed, one possible outcome of the next set of reforms is a written constitution, the natural place for it to be interpreted is the Court.xiii A less formal "charter of competences" would not be immune from judicial review of decisions taken under it instigated by parties, including other institutions, which believed the decision to be flawed.

  33.  The Union has the objective of making itself, its procedures and its acts simpler. A proposed legislative measure takes the following path:

    —  Commission proposal, published, frequently treated in newspaper columns as if it were already law.

    —  Opinions given by the Economic and Social Committee and the Committee of the Regions.

    —  Opinon at first reading by the EP, again frequently described as law.

    —  On occasion, revised proposal by the Commission.

    —  Common position of the Council.

    —  Second reading by the EP.

    —  Conciliation, Council/EP.

  The process is not in fact excessively complicated but taken with the large number of different rules (no consultation, consultation, co-operation, co-decision, assent, Council unanimity, Council QMV—three-legged, post-Nice, the budget "shuttle") Union law-making has acquired a Byzantine reputation. Putting another institution's input into the process is not simplification, contrary to the Declaration on the Future of the Union annexed to the Nice Treaty.

  34.  If the Second Chamber is to have a role in the application of the CFSP (Prime Minister) or the CJHA (Reflection Group, on COSAC), this is tantamount to a declaration of war on the EP, which has consistently demanded that it should not be excluded from these Pillars.

  35.  The Committee has asked whether a Second Chamber could play a role in reducing the democratic deficit. It will not touch but will highlight the absence of democracy from the work of the ECB. It will not strengthen and may even prejudice the democratic credentials of the Council and the European Council. It has less obvious democratising effect than the introduction of co-decision and its extension, the submission of the President of the Commission and the Commissioners to EP approval, the function of the EP Ombudsman, and the right of public access to information.

  36.  My conclusion is that the case for a Second Chamber fails. A Second Chamber designed to uphold states' rights must likewise be redundant if at Laeken in December 2001 the European Council reaches agreement on "how to establish and monitor a more precise delimitation of competences between the European Union and the Member States, reflecting the principle of subsidiarity." (Annex IV to the Treaty of Nice). Simplification and legal certainty require that the precise delimitation be justifiable, not interpreted by a political process.

REFERENCES

  i Dartmouth Publishing, ISBN 1 85521 521 7.

  ii Allen Lane, Penguin Press, 2000, ISBN 0 713-99402-9.

  iii The text of the speech is in Superpower not Superstate? Federal Trust European Essay no 12, November 2000, ISBN 1 90403 25 1.

  iv Little Brown and Co, 2000, ISBN 0 316 85402 6, p26.

  v As analysed by Juliet Hodge in Crisis or Opportunity, Centre for EU Studies, University of Hull, 1995.

  vi Sir Barnett Cocks, the European Parliament, HMSO, 1973, SBN 11 700190 2*, p28.

  vii Corbett, Jacobs and Shackleton, The European Parliament, Cartermill Publishing, 1995, ISBN 1 86067 001 6, p268.

  viii For a fuller treatment, see Cloos, Reinesch, Vignes and Weyland, Le Traite de Maastricht, Bruylant, Brussels, 1993, ISBN 2 8027 0852 X, p407.

  ix As discussed by KC Wheare in Federal Government, OUP, 1946, p36.

  x Seven Theorems in Search of the European Parliament, Federal Trust, 1999, ISBN 0 901573 70 1, pp57-58.

  xi The IGC, 1996 Paper no three, ISBN 0 90157 351 3, p11.

  xii The Treaty of Amsterdam, 1997, ISBN 0 901 57367 1, pp 176, 177, 178.

  xiii Wheare, op cit, p62.


 
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